- “Public Use And Zoning Intertwined” by Professor Richard Epstein, comparing the eminent domain power and the zoning power, and how, especially after Kelo, these two powers have been melded:
Now, the tight connection between public use and zoning issues becomesclear. Any local government that uses heavy zoning restrictions courtspublic use fiascos down the road. A constitutional regime that curbedthe excesses of local zoning would give greater security of propertyrights to insiders and outsiders alike, and thus obviate the need forgovernment land grabs like Kelo. Regrettably, our Supreme Court haswashed its hands of oversight for both zoning and public use decisions.But state courts, and state legislators should work to rein in thesedangerous tendencies, which requires a stronger and more systematicdefense of private property. To get this right, we must disabuseourselves of the supposed conflict between private property and someill-defined notion of the public interest. These two are not inopposition. In the long run, the systematic protection of privateproperty advances any viable conception of the public interest.
- “Book ’em, Danno!” by Professor Gideon Kanner, recommending the recent law review article by Debra Pogrund Stark, How Do You Solve a Problem Like in Kelo?, 40 John Marshall L. Rev. 609 (2007), which Professor Kanner cites as explaining the facts behind the infamous U.S. Supreme Court Midkiff decision on Hawaii’s Land Reform Act:
Prof. Stark tells the factual story of what the situation was likeon the ground when the U.S. Supreme Court decided the notoriousHawaiian land redistribution case, Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229.
It turns out that the big, bad lessor trust whose landwas taken in that case for redistribution to its downtroddenresidential tenants was actually a charitable entity that used the landrents for the support of the Kamehameha schools that provide a qualityeducation to underprivileged Hawaiian children. The tenants who werethe beneficiaries of low land rents were not satisfied with payingbelow-market rents and wanted their lessor’s title too. Thus, thebeneficiaries of this land grab were upper middle-class and wealthy haoles who got a good deal by ripping off a charitable trust, at the expense of native Hawaiian children.